The U.S. 2016 presidential election and post-election is causing much debate, criticism, and protest outside of America. Canadians have actively participated in public marches and protests in response to Trump’s comments and proposed policies, as well as the recent U.S. ban on entry to that country from certain Muslim nations. According to a recent CNN/ORC poll, more than eight-in-10 Americans have said that the U.S. was more deeply divided on major issues in 2016 than in the past several years.

With this in mind, we need to ask where does political talk fit in the workplace? Or more importantly, should it?

Three in 10 employers have argued with a co-worker over a political candidate vs. 17 percent of workers

IT employers most likely to argue about candidates, followed by manufacturing employers

More than a third of workers say political correctness has hindered their business

According to Joseph Grenny, four-time New York Times bestselling author and leading social scientist for business performance, when it comes to the topic of politics, “emotions run strong, the stakes are high, and opinions vary.”

A study commissioned by BetterWorks and Wakefield Research revealed that 87 percent of 500 American full-time employed adults surveyed were reading political social media posts during the workday. According to Kris Duggan, CEO and Co-Founder of BetterWorks, this equals to about two hours lost daily. It was also revealed that 73 percent of those surveyed have talked politics with their colleagues since the election and 37 percent with their boss or manager; 49 percent even revealed that they have witnessed political conversations turn into an argument at work (63 percent when it involves millennials).

With the infiltration of US politics in Canada, elections in Canada are getting more contentious as well. Especially now, that Kevin O’Leary has entered the Conservative party leadership race and Kelly Leitch is adopting Trump type rhetoric.

Canadian employers and managers should be aware that the topic of politics in the workplace is not just an HR issue, but an issue relating to the other HR: human rights.

Human rights issue

“Workplace debates about a particular candidate’s fitness for office often include mention of genders, races or religions or their views on hot-button social issues such as abortion, “family values,” immigration and healthcare, which often are polarizing issues on which there are strong and opposing views among employees of different genders, religions, national origins, etc. The potential for heated disagreements – and inflammatory, impulsive, ill-advised comments – is obvious.”

These debates can bring about complaints and claims of workplace discrimination and harassment/Bullying.

“Including retaliation in which it is alleged that “my supervisor is biased against [women/non-Christians/Hispanics] as shown by his comments about [healthcare/abortion/immigration policy]” or “the company punished me because I disagreed with my boss about [a social issue implicating gender, nationality, or religion].”

Destabilizing a person by making fun of his or her beliefs, values, political choices, and mocking his or her weak points is discrimination and harassment under human rights legislation and under the Canadian Charter of Rights and Freedom.

This type of harassment can create a negative or hostile work environment that can interfere with an employee’s job performance and result in the employee being refused a job, a promotion or a training opportunity.

However, employees do have the right to participate in political activities, even those who work in the public service sector. In 1991, the Supreme Court upheld a public servant’s rights to engage in political activities. The court ruled that banning political activity infringes on workers’ Charter rights to freedom of expression. Public servants can now volunteer for election campaigns, post political lawn signs, make phone calls and deliver flyers — so long as they don’t use office resources and their activities don’t impede their ability to do their jobs.

According to Dr. David Doorey (Professor of Work Law and Industrial Relations at York University, Director of the School of HRM at York, Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law, and he sits on the Advisory Board of the Osgoode Certificate program in Labour Law.,

“Unionized employees can’t be fired without an actual reason unrelated to the employer’s personal biases, because unions bargain ‘just cause’ provisions to protect workers. So if you’re unionized, you almost certainly can’t be fired for your political opinions.”

“If you are not unionized, then you CAN be fired for your political reasons–or for any other stupid reason for that matter–unless either you have bargained a contract clause providing others (hardly any employees do so) or a statute prohibits the discrimination. There is no common law protection against discrimination on the basis of political belief.”

Private sector employers who have non-unionized workplace, have wide discretion when it comes to limiting the political expression of employees in the workplace. However, employers can run afoul of human rights legislation including laws protecting political expression, when there is evidence of disparate treatment, uneven application of the employer’s policies, or adverse or retaliatory treatment based solely upon an employee’s political expression or position.

Not all Canadian jurisdictions have the same human rights protections, such as protecting individuals because of their political beliefs. The following is a brief look at what human rights legislation across Canada tells us when dealing with employee’s political beliefs:

Atlantic Provinces – In New Brunswick, Newfoundland and Labradour, Nova Scotia and Prince Edward Island, it is against the law to discriminate based on political belief, activity, opinion, or affiliation.

Western Provinces – In British Columbia and Manitoba, it is against the law to discriminate based on political belief, association, or activity. Alberta and Saskatchewan do not define any of those terms or list them as prohibited grounds of discrimination in their respective human rights legislation.

Ontario and federally regulated workplaces – In Ontario, political belief, activity, association, or opinion are not defined as prohibited grounds of discrimination. This is also true for federally regulated workplaces.

Quebec – In Quebec political convictions is covered under Quebec’s Charter of Human Rights and Freedoms.

Territories – The Yukon protects political belief, association, or activity under human rights legislation. The Northwest Territories also covers this ground but uses the term political association or political belief. In Nunavut, political belief, activity, association, or opinion are not considered prohibited grounds of discrimination.

Therefore, it is important to explain what is meant by these terms.

Human Rights Commissions will give this ground a broad and purposive interpretation consistent with obligations under international law, freedom of expression rights guaranteed under the Canadian Charter of Rights and Freedoms and in keeping with the approach taken by tribunals in other Canadian jurisdictions where this kind of discrimination is expressly prohibited.

Courts have held that political belief is a fundamental human right that is recognized in the Charter and in international human rights law, and that it is a right that is connected to the rights and listed in the Charter (freedom of expression, thought, belief, assembly and association).

“Political belief, association or activity” includes but is not limited to:

affiliation with a political party;

adhering to a specific ideology;

being a member of an organized lobby or association engaging in public advocacy;

promoting the establishment of, or working for, a professional, business or trade association;

participating in or being affiliated with a political protest or movement;

running for office;

working for a political candidate.

Discrimination is differential treatment of, or failure to accommodate, an individual on the basis of the individual’s actual or presumed membership in or association with some class or group of persons as set out in human rights legislation, rather than on the basis of personal merit.

Although not all Canadian jurisdictions currently define or include political belief, activity, association or opinion as prohibited grounds of discrimination, employers should be proactive by ensuring that their anti-harassment/anti-discrimination policies and measures not only deal with respect when it comes to employees’ political beliefs, activities, associations or opinions, but also prevent employees’ individual’s political beliefs, activities, associations or opinions from being imposed on others.

In the jurisdictions where political belief, activity, association or opinion are listed as prohibited grounds of discrimination, employers must take action if they know or ought to have known about inappropriate behaviour based on political belief, activity or association. This means, employers “have a responsibility to ensure that they are not taking part in, condoning or allowing discrimination or harassment to occur based on this prohibited ground”.

Also, employers have a duty to accommodate needs related to political belief, activity, association or opinion to the point of undue hardship.

“[A]n employer must take steps to eliminate disadvantages to employees resulting from rules, practices or physical barriers that have or may have an adverse impact on individuals or groups covered under human rights legislation. To accomplish this goal, an employer must determine what barriers might affect the person requesting accommodation, explore options for removing those barriers and accommodate by using reasonable efforts to the point of undue hardship.”

Employers can take a number of steps to prevent and appropriately address human rights complaints specifically on the basis of political belief, activity or association, and they include among others:

Putting in place effective education programs and policies that help those in the workplace understand about respecting the political views, activities and associations of fellow co-workers, and the type of conduct that is required when dealing with those who have different political beliefs, activities and associations (establish respectful limits when there are political discussions in the workplace);

Training those in the workplace regarding the company anti-discrimination, anti-harassment and accommodation policies concerning this ground, be proactive in ongoing monitoring, implement strategies and evaluate with a view to improve; and

Re-examining existing policies and creating additional policies and procedures in the workplace that promote acceptance of all individuals in the workplace – this can involve policies relating to recruiting attempts, or inclusive events in the workplace.

HR issues

So when the conversation of politics spills into the workplace, how should employers respond? What should their role be? According to Duggan (ibid), there are five ways managers can keep productivity levels high:

Do not micromanage employees. This includes “Cut[ting] employees some slack and give them space to stay informed in light of recent political news.”

Focus on your goals. “Goals adds focus amidst the distraction and helps employees get their work done”.

Encourage work-life integration. True work-life integration means that employees will bring their personal life into the office, including their political beliefs. “As a manager, do your best to accommodate the continuum of work-life integration by giving employees space to read up on news that matters to them and talk with their colleagues about political news.”

Do not argue with employees. Arguments can bring about a breach in trust in the manager-employee relationship. “If you ever have the urge to argue with an employee, especially one you manage, change the subject before it takes a negative toll on your relationship with the employee.”

Unite over work. It is a manager’s job to give employees the means to stay focused and productive. “When employees have the means to stay focused on work, it can actually feel like a respite. Find common ground in your overlapping work and focus your attention on meeting your work goals.”

Also, according to Forbes (ibid) “don’t stand for disrespect… It’s completely possible for people to have opposing viewpoints without stooping to derogatory comments. When emotions are running high, a disagreement over political philosophies can deteriorate into personalized attacks. Before that happens, the best option is to agree to disagree—and then get back to work.”

There is much to consider as an employer when it comes to the presence of political talk and voicing opinions in the workplace. As much as freedom of speech and affiliation are important values to advocate, employers must also ensure that all speech is carried out respectfully and free of discrimination, to maintain a workplace where diversity of opinion is an asset rather than a hindrance.

Comments

This is actually a very pertinent issue, but I’m not sure I can agree with all of the recommendations here.

In Ontario, employers have a positive obligation under Bill 168 and Bill 132 to ensure that the workplace is safe and free from all forms of harassment and discrimination. Other provinces have comparable legislation and are also governed by similar principles in common law.

This isn’t just an issue between managers/supervisors and their staff. Simply “allowing” employees to discuss politics between themselves is unlikely to cut it, especially given the type of vitriol these political discussions often spiral into. Free speech and the ability of employees to be involved in political activities outside of the workplace will not alleviate employers of this responsibility within the workplace.

Employees can and should be disciplined for commentary which violates human rights and workplace safety principles, up to and including termination (with appropriate progressive discipline first). Political discourse in today’s environment will invariably cross these lines, more frequently with views on some parts of the political spectrum than others. This is true in both the unionized or the non-unionized environment, although the former would have to follow different procedural mechanisms.

Only Ontario, British Columbia, Manitoba and Saskatchewan have harassment provisions incorporated in their Occupational Health and Safety legislation. Ontario’s Occupational Health and Safety Act (“OHSA”) defines “workplace harassment” as engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome (Stemming from Bill 168); and effective September 8, 2016, this also includes workplace sexual harassment (stemming from Bill 132).

And I agree with your point that in Ontario, if the political expression became a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, would have to be dealt with under OHSA. Similar discussion would also be needed in British Columbia, Manitoba and Saskatchewan. And this in addition to any human rights legal requirements.

However, OHS requirements to prevent “all” forms of harassment in the workplace would not invalidate or eliminate the employers obligation to prevent discrimination and harassment under human rights legislation.

In my opinion, for political expression to be covered under OHS is a different discussion that requires a different angle and a different article. So you provided me with part two on the topic, because to me, it would have to have gone beyond simple water cooler discussion and difference in opinions about politics. Remember, in the definition of harassment under OHSA, it says that the act of harassment must be known or ought reasonably to be known to be unwelcome. If I embark in a political discussion with you, over a water cooler, at first glance, how am I to reasonably know that my political belief is unwelcome to you. Unless, my employer has a policy limiting the discussion of political issues at work because of the risks of unlimited “free speech” in the workplace.

Well stand by for my next article that will further develop this discussion.

This said, choosing to discuss only the Human Rights issue was a choice, because to me workplace political expression is better suited as a human rights issue than an health and safety one. It is not meant to dismiss the OHS discussion. Also, choosing to provide managers and supervisors with a discussion on how to deal with the problem before it gets out of hand is also a choice. So many times things can be resolved without making it a disciplinary issue. Not everything needs to elevated to discipline if your managers and supervisors are well trained, good leaders, have their policies and processes in place, apply them, and are aware of what is going on in their workplace. This said, when speaking about workplace harassment under OHS, discipline will be discussed as the complaint and response process is a mandatory requirement.

I look forward to the next piece, and yes, I do look at this issue from the perspective of my jurisdiction.

I’m pretty sure that it could be construed to be “reasonably known” that comments supporting the complete ban of entire ethnicities or faiths, the misogyny towards women, vitriol about other nations, and a whole slew of other related “political” comments would still be unwelcome for any unreasonable person.

They should not be expressed at all, rather than waiting for an indication from the target audience (or a co-worker overhearing them) to indicate objection or concern.